The Examination of Prosecution and Defense Witnesses - By San Francisco DUI Lawyer Nafiz Ahmed

I N S I D E T H E M I N D S

Witness Preparation
and Examination for
DUI Proceedings
Leading Lawyers on Developing Questioning
Strategies, Gathering Eyewitness Testimony, and
Building a Successful Defense

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The Examination of
Prosecution and
Defense Witnesses

Nafiz M. Ahmed
Partner
Ahmed and Sukaram, Attorneys at Law

Inside the Minds – Published by Aspatore Books

Key Witnesses

The witnesses called by the district attorney in a DUI case depend upon
whether the defendant submitted to a blood, breath, or urine test. The
witnesses called by the defendant, if any, depend upon whether there are
witnesses to an alleged drinking pattern, passengers in the defendant’s
vehicle, or other witnesses to the field sobriety tests that the defendant
performed (e.g., residents of a home or neighbors who witnessed the DUI
stop and arrest).

Prosecution Witnesses

To begin, the district attorney will generally need to call at least one officer
to the stand in the DUI prosecution. The district attorney will need to call
the officer who observed the defendant’s driving, or who was first to
respond to the scene (e.g., after a reported accident, or a reported sleeping
driver on the side of the road).

The district attorney will also need to call the officer who administered the
field sobriety tests on the defendant, including the preliminary alcohol
screening device test; this officer may not always be the same officer as the
first officer who arrived on scene. For example, local officers may request
the assistance of the California Highway Patrol in conducting the DUI
investigation, or a less experienced officer may request the assistance of a
more experienced officer.

It is common for other officers to arrive on scene after the first responding
officer to act as a backup officer. Generally, the district attorney does not
need to call this backup officer as a witness, but a lot of times the district
attorney will, in order to corroborate the first officer’s testimony, or to
provide other damaging evidence that the first officer did not observe (e.g.,
beer cans under the front passenger seat).

Additionally, the district attorney may wish to call the
arresting/transporting officer, who may not always be the same officer as
those who first responded to the scene or who arrived as backup officers.
The district attorney may wish to call this officer to admit the defendant’s

The Examination of Prosecution and Defense Witnesses – by Nafiz M. Ahmed

“un-Mirandized” and alleged “spontaneous statements” that the defendant
may have made in the car ride to the jail. It is not uncommon for the
defendant to plead with this officer for a break or to admit guilt in some
other direct or indirect fashion. Moreover, if the defendant was belligerent
with this officer, the district attorney can argue that this evidence reflects a
level of the defendant’s intoxication.

The district attorney also needs to call the officer who issued the defendant
his Miranda advisement in order to admit the defendant’s post-Miranda
statements concerning the alleged drinking and driving.

The district attorney must also call as a witness the officer who was present
when, or who administered the defendant the blood, breath, or urine test
pursuant to the Implied Consent Law.

To begin with a blood test, the district attorney must call the officer who
was present when a phlebotomist, certified pursuant to Title 17 of the
California Code of Regulations, administered the defendant the blood draw.
This officer witness is necessary to verify that blood draw procedures were
properly followed (with respect to the officer’s duties only), such as
verifying the blood evidence envelope is signed, dated, and affixed to the
blood vial sample, and that such sample is promptly delivered to a
refrigerator for storage and subsequent analysis.

As can already be guessed, the district attorney will need to call the
phlebotomist to the stand to testify to the fact that proper blood draw
procedures were followed with respect to the defendant’s blood draw. This
witness will be called unless the defense attorney stipulates to this evidence.

The district attorney will also need to call the officer who administered the
defendant a breath test on either a Draeger Alcotest 7110 MK III-C or
other breath-testing device, such as the Intoxilyzer 5000. This officer needs
to be properly trained in accordance with Title 17 of the California Code of
Regulations as to how to administer such a test.

Lastly, if there was a urine test, the district attorney will need to call the
officer who was present when the defendant submitted their urine sample.


To testify to the significance of the blood, breath, or urine test, the district
attorney will need to call an expert witness, likely from the laboratory that
analyzed the defendant’s blood, breath, or urine test, to testify to the
accuracy of the blood, breath, or urine tests, the particular instruments
used in the defendant’s case, and the significance of the defendant’s blood
alcohol concentration on their ability to drive. This expert is likely going
to be a forensic toxicologist and seems to be a catch-all expert for
everything scientifically related to convicting this defendant.

If there are any percipient witnesses to the defendant’s driving or to the
field sobriety tests that will provide damaging testimony against the
defendant, the district attorney will call these witnesses as well. Think
about witnesses from a hospital, a sober environment the defendant is
taken to if he or she is not immediately taken to jail, or emergency medical
responders.

Defense Witnesses

Generally, the defendant has far fewer witnesses than does the
prosecution. The defendant has an absolute privilege under the Fifth
Amendment of the U.S. Constitution not to testify. However, depending
upon the defense, such as a rising blood alcohol concentration defense or
the “I was not driving” defense, the defendant may testify if he or she
does not have other favorable independent witnesses to testify. The
defendant’s other witnesses will vary based upon the type of defense the
defendant is presenting.

If the defendant has favorable percipient witnesses, the defendant will call
these witnesses to testify. For example, if there are favorable witnesses to
the defendant’s field sobriety tests, such as a credible passenger or
independent third party, the defendant will call these witnesses. If the
defendant wants to establish a rising blood alcohol concentration defense,
the defendant may call the bartender, waiter or waitress, and/or other
friends or witnesses to the alleged drinking pattern. If the defendant is
confronted by officers at his or her home following the report of an
earlier suspected drunk driving hit-and-run accident, the defendant may
call a spouse or roommate to testify to their observations of the defendant
being coerced, tricked, or dragged out of his or her home by an aggressive


officer. The effect of this witness’s testimony will call into question the
officer’s ability to impartially characterize the defendant’s level of
intoxication, depending on this witness’s credibility before the jury.

Additionally, if the defendant has a certain medical condition that would
impair his or her ability to perform well on the field sobriety tests, the
defendant may want to call a treating physician or physical therapist. If the
defendant was taken to a sober environment and did not appear to be
under the influence (e.g., no slurred speech or bloodshot or watery eyes),
and made friends with one of the staff members, the defendant may wish to
call this person to testify to rebut the objective symptoms that the officer
likely alleged that he or she observed and documented in the police report.

Also, the defendant will likely call his or her own forensic toxicologist to
testify if his or her expert witness can help support a defense theory (e.g.,
no impairment or rising blood alcohol concentration defense), or attack a
prosecution theory (e.g., retrograde extrapolation).

The attorney’s role is truly a delicate one when it comes to preparing the
defendant to testify or other third-party witnesses, excluding the
defendant’s expert witnesses. The defense attorney must be careful not to
suggest what the witness’s testimony should be, because this is a violation
of the attorney’s ethical duties. What the attorney must do depends on who
the witness is.

For the defendant, the attorney should conduct the initial client interview
with the defendant and simply listen to the client’s version of events. The
attorney should let the client explain his or her whole side, and the attorney
should ask guiding questions to elicit a complete testimony. Thereafter, the
attorney and client will discuss the case on many occasions and go over the
prosecution’s case and the defense case. The defense attorney will ask the
defendant questions concerning the prosecution’s allegations and likely
theories, and the defense attorney should point out the strengths and
weaknesses, if any, of the defendant’s positions.

By the time the case is confirmed for trial, the defendant ought to know just
about every question the district attorney may ask of him or her, because
the defense attorney has asked the defendant these questions already on


numerous occasions. Therefore, without suggesting to the defendant how
to testify, by going over the case thoroughly with the defendant, and even
pretending to be the district attorney with the defendant, the defendant
should be prepared to testify and to not be startled or tricked by any
questions the district attorney will ask.

These same principles should be employed with third-party percipient
witnesses. The fear of suggesting testimony to expert witnesses is far less
likely because they are bound to only provide testimony they believe is
scientifically accurate and consistent with their previous positions taken on
similar issues. The defense attorney generally knows what he or she will get
from his or her expert witness.

Process

Regardless of whether your client is going to testify, it is the attorney’s duty
to go over the police report with the client. This rule is not statutory—it is
simply a matter of keeping your client informed about the nature of the
charges against him or her and the evidence the district attorney will have to
use in its case-in-chief against your client. Defense counsel should provide a
copy of the police report to the client.

To the layperson or non-criminal defense attorney, this principle would
seem axiomatic. However, because a defense attorney may be criminally
prosecuted for willfully providing the defendant with the address or
telephone number of any testifying witness the district attorney disclosed to
the defense pursuant to Penal Code Section 1054.1(a), defense counsel can
be understandably hesitant in providing their client with a copy of the
police report. Cal. Penal Code § 1054.2(a)(1), (West, 2009).

Of course, some people like myself can argue that such a fear of
prosecution is unfounded because a police report is not a witness list under
Cal. Penal Code § 1054.1(a), and therefore defense counsel’s production of
the police report to the defendant does not fall within the prohibition of
Cal. Penal Code § 1054.2(a). However, in this type of discovery debate,
most even-keeled counsel likely would not want to be the test case to find
out whether a judge would agree with their argument. Therefore, to avoid
the issue entirely, defense counsel should simply redact the witnesses’


addresses and telephone numbers from the police report, and then
provide a copy of the report to the client. The attorney is safe, the client is
happy, and the court is uninvolved.

So at the very least, defense counsel should review the police report with
their client. The next step would be to ask the client to take a copy of the
redacted police report home to carefully review it for inaccuracies or
other inconsistencies. Thereafter, the client should provide the defense
attorney with a written summary of what he or she believes to be wrong
in the police report. In addition, this written summary should include the
client’s version of the events in question.

However, since many clients do not wish to write this statement, the
defense attorney should at least orally discuss with the client the police
report and the client’s version of events. The advantage of receiving a
written statement from the client is that it preserves the client’s memory
of the DUI stop, investigation, and arrest, and it provides documentation
to the attorney to refresh his or her memory of the client’s case even after
significant time has passed (e.g., when I am preparing for trial in a DUI
case that is to occur in some cases almost a year and a half after the initial
arrest). But if an oral dialogue is all the defense attorney can get, that
attorney better take good notes.

It is only after the defense attorney knows their client’s story that the
attorney can truly know and appreciate the different recollections and
memories of other defense witnesses. Defense witnesses generally don’t
need to be provided a copy of the police report. These witnesses have
more limited roles in the DUI case, and they can be interviewed with a
defense investigator or a tape recorder. This way, if a witness later
changes his or her recollection of key facts in the case, this witness can be
later impeached with their prior inconsistent statement.

It is always a good idea to talk to a defense witness after having personally
investigated the scene of the DUI stop, investigation, and arrest.
However, it is generally okay to talk to the defense witness (with an
investigator or tape recorder) to get a preliminary idea of the defense
witness’s anticipated testimony before visiting the scene so that defense
counsel can know what visual evidence to focus on at the scene.


However, the best advice for the defense attorney to follow is to visit the
scene together with the defense witness.

Make sure to have a camera handy, because once defense counsel
understands the defendant’s case with the visual perspective of the scene
itself, defense counsel should try to present the same impressions to the
jury through photographic evidence. So take pictures with the witness
describing why that area photographed is relevant. When it comes time to
go through the story again on the stand, the witness knows why you are
asking him or her certain questions, and the witness will appear more
confident, reliable, and accurate in front of the jury. Confident and accurate
witnesses generally appear to be truthful witnesses, which is a big plus when
the witness is testifying in favor of the defendant.

However, truthfully witness preparation is not just about preparing defense
witnesses. Preparing defense witnesses is easy. These people generally are
amicable to our clients and are willing participants in the trial. Witness
preparation really occurs with the prosecution’s witnesses, whether they are
officers, forensic toxicologists, or accident reconstruction specialists.

Witness preparation in this arena occurs in only one fashion: the hard way.
Defense counsel can only effectively prepare for a prosecutor’s witness to
remain honest, un-embellishing, and cautious of what they say (i.e., harmful
testimony to the defendant by knowing as much or more about what that
witness is supposed to testify to than the actual witness themselves). In the
context of the defense attorney’s knowledge, I am referring to the defense
attorney matching wits with the prosecution’s witnesses in their capacity as
an expert witness, and not a lay witness.

This means defense attorneys have to actually read books, articles, and
other scientific studies that are put out by the U.S. Department of
Transportation, the International Association of Police Chiefs, the
American Prosecutor’s Research Institute, and countless other prosecution-
oriented powerhouses. Defense counsel needs to understand the science of
breath testing and be thoroughly familiar with the various breath-testing
devices. It is likely that if defense counsel becomes familiar with the science
associated with DUI defense, defense counsel will know more about the
subject than the judge, the district attorney, the witnesses, or any of the


jurors. There is no excuse for not attempting to obtain this advantage to use
in your client’s favor during voir dire, opening statement, direct and cross-
examination, and closing argument. This is the core high-priced knowledge
our clients pay for and expect from each of us.

Language barriers are addressed differently, depending on whether the
defendant is assisted by the public defender or by private defense counsel.
If the defendant is assisted by the public defender, the client will get a
court-appointed interpreter to facilitate attorney/client discussions.
However, these meetings may only occur limitedly, such as once at the pre-
trial conference, and on the day of trial, and during trial.

If the defendant has retained counsel, that defendant can either meet with
the attorney with a friend or family member who can act as an interpreter,
or the client will have to hire an interpreter. This is assuming that the
attorney does not have a staff member who speaks the defendant’s
language. At any court proceeding, however, the defendant will have to
retain the assistance of a certified court interpreter.

If you have hired an experienced expert witness, very much preparation is
generally not required. At a minimum, what must be done is that the expert
has a copy of the police report and all relevant information sufficiently in
advance of the trial. Because expert witnesses are notoriously busy, you
want to contact your witness well in advance of trial and after their review
of the report to make sure they have read the report and hear your view of
the case. You want to let the expert know about the information you would
like them to focus on, and get them to provide their opinion on the issue or
agree to do further research on the issue. You also want to ask your expert
about the prosecution expert’s likely testimony and how to combat that.
The expert witness should know what the other side’s expert would testify
to, because the experts should have similar training and knowledge
concerning the subject in question. The experts’ interpretations of a
particular situation are what may vary. The defense attorney’s role here is
limited. It is like asking a doctor to explain why he or she agrees or
disagrees with another doctor’s opinion that surgery is necessary. The
defense attorney frames the issue and asks the expert for an opinion. This is
the same opinion the defense attorney will ask the expert witness to provide
to the jury. By doing this, you get the witness ready for the prosecution’s


cross-examination, as well as get yourself ready to cross-examine the district
attorney’s expert witness. In reality, however, the expert witness should be
prepared for any cross-examination the district attorney may have without
much preparation by the defense attorney.

You have to make sure your expert is talking about your case, as opposed
to one of the hundreds or thousands of previous DUI cases the expert has
worked on. It’s about trying to make the expert focus on this defendant,
this cop, and/or this breath test operator or phlebotomist.

Considerations

Witnesses should not be affected by discovery issues in a DUI case. When I
read the word “discovery,” I am reading it in the legal context of Cal. Penal
Code § 1054 et seq., meaning the prosecutor’s duty to turn over statements
of witnesses including the defendant, real evidence (e.g., blood or breath
test results), felony convictions of a material prosecution witness, and so
on. If defense counsel is provided a copy of the police report, generally
defense counsel has all relevant discovery he or she needs for witness
preparation, because this report encapsulates statements the officer
attributes to the witness. Or the report may encapsulate observations of the
witness. Other discovery under Section 1054 et seq. should not affect the
witness. If defense counsel doesn’t have all the discovery he or she needs,
defense counsel will request a continuance of the trial date until he or she is
provided the discovery he or she is seeking.

But there are areas of discovery that defense counsel is not currently
receiving, and this presents a big issue in that we cannot effectively
confront and cross-examine the prosecution’s experts, nor can we have
independent review of the prosecution’s scientific evidence.

I could write a great deal on a complete listing of DUI discovery issues, but
that would be outside the scope of this chapter. The most troubling issue
for me is concerning the breath-testing devices, particularly the Draeger
Alcotest 7110 MK III-C. The fact that defense counsel doesn’t have access
to much of the information that is captured and stored on this instrument is
problematic (e.g., breath temperature, blow duration, error code messages).
Without full information concerning the defendant’s breath test or the


breath-testing instrument the defendant submitted his or her breath test on,
the defendant is precluded from due process of law as well as his or her
Sixth Amendment right to confront and cross-examine the witnesses
against him or her and effective assistance of counsel.

For example, to show that the Draeger Alcotest was working properly, the
district attorney must demonstrate compliance with Title 17 of the
California Code of Regulations. Among other things, Title 17 mandates that
the Draeger Alcotest comply with certain prescribed parameters during
accuracy checks. The Draeger Alcotest can be programmed to perform
automatic accuracy checks on itself. If programmed to do so, the Draeger
Alcotest will store the results of the automatic accuracy checks on itself
(kind of like a computer, though Draeger Safety Diagnostics Inc. will
strenuously argue that the Draeger Alcotest is not a computer). Draeger
Inc. sells law enforcement a proprietary software—unavailable to defense
counsel—that can automatically download the results of the automatic
accuracy checks from the Draeger Alcotest itself and upload the results into
a different format onto another computer. In San Mateo County, the
district attorney will provide defense counsel with the automatic accuracy
check results that have been downloaded from the Draeger Alcotest, and
that have been converted into a different format. This is problematic for
several reasons.

First, the converted automatic accuracy check results produced by the
district attorney contain substantially less information than if they had been
printed from the Draeger Alcotest itself. Secondly, in San Mateo County,
there has been no independent verification since late 2004 that the numbers
provided by the district attorney actually match up with the numbers as they
exist on the individual Draeger Alcotest. This means defense counsel can be
receiving erroneous results that the district attorney argues to the jury
demonstrates that the Draeger Alcotest is functioning properly. (This is a
problem across the state.) Clearly, this is a big issue. Thus far, the San
Mateo County superior courts, including the Appellate Division of the San
Mateo County Superior Court, have held that defense counsel is not
entitled to this information. The lack of this discovery affects defense
expert witnesses, because these witnesses can’t verify the reliability of the
Draeger Alcotest. This discovery also affects the prosecution’s expert
witness, because they don’t have to worry about this line of attack.


Other discovery issues that can affect defense and prosecution expert
witnesses in the manner described above are with respect to knowing the
volume of breath sample provided by the defendant in an alleged refusal
case. This information is highly relevant and potentially exculpatory to our
clients, because when the officer and district attorney claim that our
clients didn’t blow properly into the Draeger Alcotest or for a long
enough period of time, we can actually verify whether what the officer
and district attorney claim are true. However, to date the San Mateo
County district attorney’s office refuses to provided this breath volume
information. (I have been successful in having the district attorney at least
provide the defendant’s blow time information.) I have argued that this
information is required to be produced under Cal. Penal Code §§
1054.1(f) and 1054.1(e) (i.e., as the result of a scientific test that the
prosecution intends to introduce into trial; and Brady v. Maryland, 373 U.S.
83 (1963)) and Cal. Veh. Code § 23158(c), which specifically provides
that, “Upon the request of the person tested, full information concerning
the test taken at the direction of the peace officer shall be made available
to that person or that person’s attorney. (Cal. Veh. Code § 23158(c),
(West 2007); See McKinney v. Dept’ of Motor Vehicles (1992) 5 Cal.App.4th
519, 525 (applying this discovery provision to the Intoxilyzer breath test
result); Petricka v. Dept’ of Motor Vehicles (2001) 89 Cal.App.4th 1341; also
see Hines v. Superior Court, 20 Cal.App.4th 1818 (1993).)

Other discovery issues that affect defense and prosecution witnesses in
the same manner as above are the fact that Draeger Inc. did not wish for
any non-law enforcement personnel to have access to the operator’s
manual for the Draeger Alcotest. Draeger Inc. argued that the materials
are proprietary and protected under copyright laws. After I brought a
motion in San Mateo County Superior Court (and before a hearing on the
motion), Draeger Inc. acquiesced and produced a copy of the Draeger
Alcotest’s operator’s manual for defense counsel to review, but only in the
district attorney’s office and not to be photocopied under any
circumstances. Also per the request of my motion, the San Mateo County
Sheriff’s Office forensic laboratory also produced a copy of its contractual
agreements between Draeger Inc. and the County of San Mateo. Lastly,
because of that motion, the forensic laboratory began making available
certain error code messages associated with defendants’ breath tests that
have previously been withheld.


Generally, if the defendant testifies in a criminal case and the defendant
loses, the judge can then decide to sentence the defendant more severely
than the sentence that was offered at the pre-trial conference. The judicial
reasoning for this increase in penalty is because the judge believes or argues
that the defendant lied, which is why the defendant was convicted.
Although this reasoning can sometimes be flawed, it is commonly used to
scare the defendant away from a trial in the case. The judge will discourage
trial to save the jurors’ time, as well as the officers’, judge’s, and district
attorney’s time.

Therefore, if you do not think your client sounds as if he or she will provide
consistent and plausibly true answers while testifying, or if your client seeks
to introduce extraneous evidence about some other injustice in order to
avoid the present DUI prosecution, the defense attorney should caution the
client against testifying.

However, clients should be placed on the stand whenever they choose to
testify. It is their constitutional right to testify, and if they want to testify,
they can. The defense attorney’s role is to do the best he or she can to
explain that a trial is not a circus, and that the types of responses the
defendants can provide are limited. Once the defendants understand their
parameters in testifying, it is entirely up to them whether they testify.

Moreover, the defense attorney will not truly know whether the client
should testify until after the close of the prosecution’s case. Many times, the
defense attorney can feel as if he or she created enough doubt, or that the
district attorney failed to prove beyond a reasonable doubt that the
defendant is guilty. In this case, the defendant should be cautioned from
taking the stand to fill holes in the prosecution’s case or to confirm that he
or she is guilty.

Witness Examination

The goal is always to attack the prosecution’s case, support a defense, or
impeach or bolster the credibility of a witness. The most effective questions
are the ones that call for the witness to provide a direct and concise
response. Questions calling for shorter answers are more effective because
the attorney can control the pace of the examination, keep the testimony


fresh, keep the jury involved, and make the defense witness appear more
knowledgeable and reliable. This type of questioning also limits the bad
responses the prosecution’s witnesses can provide, and forces the district
attorney to stay sharp and remember to elicit whatever bad evidence they
want from their witnesses to harm our clients.

The goal when examining one’s client is to keep the client on the stand for
the minimum time necessary to establish the client’s defense. This is
because the defendant is being carefully scrutinized by the district attorney
and the jurors while testifying. Any inconsistencies in the client’s story,
whether material or not to the prosecution’s claims or to the client’s
defenses, will be pounced on by the district attorney and explored by the
district attorney for impeachment purposes. Furthermore, the judge can
sentence the defendant to a greater punishment if the defendant is
convicted and the judge suspects that the client perjured himself or herself.
Unless the client is a natural star and comes off as inherently believable in
response to the district attorney’s questioning, it is probably better for the
defense attorney to assume the star role in closing argument.

The type of examination of third-party witnesses depends on the type of
witness that is testifying. The defense attorney does not want to be a bully
with apparently unbiased third-party prosecution witnesses. Rather, the
defense attorney may wish to simply appear as the person with a better
understanding of what truly transpired in the case due to his or her
extensive pre-trial investigation and preparation. Further, with respect to
expert witnesses, a defense attorney is not generally going to blow the
prosecution’s expert witness out of the water. The prosecution’s experts
generally are not taking outrageous positions, and the defense attorney
should be prepared to overemphasize minor concessions and victories that
he or she can achieve on isolated questions. In closing, the defense attorney
can argue that the small concessions he or she received from the
prosecution’s expert on minor points add up to a large victory, in that there
is a reasonable doubt about the client’s guilt.

The questions that are asked during witness examination of experts for the
defense depend upon the type of defense that is being raised. The defense
attorney can attack numerous aspects of the prosecution’s case, including
the officer’s observations of the driving, the meaning of the field sobriety


tests, and the manner in which those tests were administered. The defense
attorney’s goal is to show that there are errors in the officer’s and/or
prosecution’s case, and/or to explain other innocent reasons for the
defendant’s actions and/or test results. The defense attorney is trying to
establish that, based on the district attorney’s evidence and in light of the
testimony of the defense expert, the prosecution cannot prove the
defendant guilty beyond a reasonable doubt, or that the defendant was
entirely wrongfully accused.

On the issue of medical conditions in DUI proceedings, the defendant’s
treating physician is the most credible witness. Physicians who have not
treated the defendant are the least credible. The purpose of brining
medical information is to present a defense, such as the fact that the
defendant was injured and could not adequately perform the field sobriety
tests due to the defendant’s injury. Or the purpose of calling the doctor
may be to establish that the defendant has a gastrointestinal disorder such
as GERD, which will lead to unreliable breath test results.

Testifying officers generally eschew National Highway Traffic Safety
Administration (NHTSA) training on field sobriety tests. Instead, they
generally argue that they follow what they were taught by their local police
academy, or tests they have created based on their own experience. This is
because the NHTSA has much more stringent guidelines for
administering field sobriety tests than do the local cops or, many times,
the California Highway Patrol. Therefore, although the NHTSA standards
are the only validated method for administering field sobriety tests and
interpreting the results, if an officer has done the tests incorrectly or
interpreted them incorrectly, you can bet the officer will significantly
downplay NHTSA standards. This is why it is so important that the
defense attorney actually have a physical copy of the NHTSA field
sobriety test training manual and get the cop to agree that it is reliable
authority, so the defense attorney can cross-examine the officer on it
under Cal. Evid. Code § 721. Without complying with Cal. Evid. Code §
721, the defense attorney may never get to cross-examine the cop on
NHTSA standards, and may be forced to introduce evidence concerning
NHTSA standards from their forensic toxicologist expert witness.


Having an experienced and reputable expert witness on this point is crucial.
This defense witness makes or breaks many DUI cases, because if the jury
finds the defense expert believable, the cop is in trouble with the jury. A
good defense attorney will then call the officer to the stand after the
defense attorney has presented his or her forensic toxicologist’s expert
testimony on NHTSA and then ask the cop whether he or she agrees with
what the expert said, and why or why not. A lot of ground can be gained
with the officer here. But even if the cop is very credible and evasive, a lot
of the same work can be done by cross-examining the district attorney’s
forensic toxicologist’s expert witness on these same points.

Regarding blood alcohol concentration testing when cross-examining the
chemist or scientific witnesses, these witnesses are the hardest to cross-
examine. They appear to be the most independent and scientific.
Dispassionate from the prosecution and the defendant, they appear only to
be concerned with methodology and principles, which invariably sink the
defendant’s case.

Let us be clear: the district attorney’s forensic toxicologist expert witnesses
are generally employed by that county’s sheriff’s office. They are, for
purposes of California discovery, part of the “prosecution’s team.”

In cross-examination, I focus on the fact that the results of the “scientific
tests” verifying the accuracy of the breath-testing machines that defense
attorneys are getting from the laboratory are the laboratory’s refined,
retyped, and edited version of the original raw data of these “scientific
tests” as they exist on the breath-testing instruments themselves. I try to
expose the district attorney’s expert witnesses as the biased and secretive
agents they really are.

In general, however, the district attorney’s forensic toxicologist expert
witness is also the defense attorney’s best witness. Sometimes our most
significant cross-examination is provided by their testimony. This is because
these experts must testify generally consistently with what a defense expert
would testify, so if there is any defense issue in the case, the defense
attorney can use the district attorney’s expert as a witness to preview the
defense attorney’s expert’s testimony. Therefore, there will be two experts
that are reasonably close on a defense theory. The type of questions the


defense attorney will ask truly depend on the discovery provided and the
defense in the defendant’s case.

The key technique to cross-examining the arresting officer is to focus on
cross-examination in parts. The steps to view in cross-examination are the
officer’s observations prior to the stop (e.g., reasonable suspicion of
Vehicle Code violation justifying the stop), the officer’s observations
during the stop (e.g., probable cause to arrest), the defendant’s post-arrest
statements, and the officer’s role in the blood, breath, or urine test.

However, the real key to cross-examination is to focus on getting
discovery from the officer through pre-trial in limine motions. For
example, the defense attorney can discover a lot about the scene of the
arrest by bringing a couple of simple motions, such as a motion raising a
Miranda v. Arizona, 384 U.S. 436 (1966), violation, a motion to exclude the
results of the horizontal gaze nystagmus test, or a motion to exclude the
results of the preliminary alcohol screening test. By raising these motions,
the defense attorney previews the officer’s testimony, including testimony
that was not mentioned in the officer’s report. This means that if the
defense attorney needs to know an answer to a question that was not
addressed in the officer’s report, the defense attorney can ask the officer
this question during these pre-trial motions. The officer can provide a
very damaging response, but at least it will be outside of the presence of
the jury, and the defense attorney will know how to maneuver around the
issue at trial. Moreover, the added advantage of bringing these motions is
to lock the officer into certain testimony pre-trial, and to either confirm
the same testimony at trial or impeach the recanting officer with it at trial.

The defense attorney needs to be thoroughly familiar with the NHTSA
guidelines to DUI traffic stops and enforcements. The defense attorney
should know about visual cues the officers are trained to detect in
determining whether an individual is driving while under the influence of
alcohol (e.g., the defendant was drifting, weaving, or swerving within their
lane). It is important for the defense attorney to know that each of these
terms has its own meaning. Often the officer uses these terms
interchangeably. The defense attorney can really exploit the officer’s lack
of knowledge in this area, because if the officer is shown to have used


different terms to mean all the same thing, the credibility of his or her
observations and competence have been severely put into question.

Moreover, the defense attorney should be highly familiar with the NHTSA
guidelines for properly administering and evaluation field sobriety tests. The
key point to cover when cross-examining enforcement/police officers on
the field sobriety tests is that field sobriety tests are only to be afforded any
scientific weight with the jury if the correct tests are given and are correctly
administered. There are three standardized field sobriety tests (horizontal
gaze nystagmus, walk-and-turn, and one-foot leg lift). Even if the officer
gives the correct tests in the correct manner, the officer also has to be able
to correctly interpret the meaning of the test results. This means the officer
has to determine whether the defendant’s performance on the field sobriety
tests was due to alcohol intoxication or some other factor, such as trauma
due to car accident, other injury, or medical condition. The district attorney
will argue that the three NHTSA field sobriety tests are 80 percent reliable
in differentiating subjects with a blood alcohol concentration of at least 0.10
percent from those at lower blood alcohol concentrations. (Nowaczyk and
Cole, “Separating Myth from Fact: A Review of Research on the Field
Sobriety Tests,” Champion, August 1995, at 40) Defense experts can argue
that accuracy of these field sobriety tests drops to as low as 70 percent for
this purpose. However, regardless of whose expert is correct, ask the jury
whether it is okay to convict no more than four out of twelve innocent
persons and no less than two such innocent persons. This example should
have some weight with them, given that there are traditionally twelve jurors
to most criminal cases.

Nafiz M. Ahmed is a partner and criminal defense attorney at the law firm of Ahmed
and Sukaram, Attorneys at Law located in Redwood City, California. Mr. Ahmed
defends adults and juveniles across the state of California who have been accused of
driving under the influence of alcohol or drugs, and charged with crimes such as vehicular
homicide, felony DUI, misdemeanor DUI, or other related offenses.


Appendices
Appendix A: Petition for Transfer 22

Appendix B: Motion to Compel Discovery (1) 35

Appendix C: Motion to Compel Discovery (2) 50

Appendix D: Supplemental Points to Motion to Compel 59
Discovery (1)

Appendix E: Supplemental Points to Motion to Compel 63
Discovery (2)

Appendix F: Combined Petition for Rehearing Application 68
for Certification

Appendix G: Combined Writ of Mandate 75

Appendix H: Opposition to Motion to Quash Subpoena 94
Duces Tecum

Appendix I: Reply to District Attorney’s Opposition to 102
Motion to Compel Discovery


APPENDIX A

PETITION FOR TRANSFER

NAFIZ M. AHMED (State Bar No. 240069)
AHMED AND SUKARAM, ATTORNEYS AT LAW
600 Allerton Street, Suite 201
Redwood City, CA 94063
Telephone: (650) 299-0500
Facsimile: (650) 299-0510

Attorneys for Petitioner
CH

IN THE FIRST DISTRICT COURT OF APPEAL IN
AND FOR THE STATE OF CALIFORNIA

CH,
Petitioner

vs.

SAN MATEO COUNTY SUPERIOR COURT,
Respondent

THE PEOPLE OF THE STATE OF CALIFORNIA
Real Party in Interest.

PETITION FOR TRANSFER TO THE
1st DISTRICT COURT OF APPEAL


Following the Judgment of the Appellate Department of the San Mateo
County Superior Court of February 23, 2009 that became Final on March
25, 2009

The Honorable XYZ, Presiding
Tel.: (650) 000-0000

From Orders of the Superior Court of the State of California
County of San Mateo
Case No. SMXXXXXXX
The Honorable ABC, Presiding
Tel.: (650) 599-1683

PETITION FOR TRANSFER OF CASE TO COURT OF APPEAL
(CAL. RULES OF COURT, RULE 8.1008)

TO THE HONORABLE JUSTICES OF THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA, FIRST APPELLATE DISTRICT:

Petitioner CH, by his counsel, petitions this Court to transfer this case to
this Court pursuant to this Court’s transfer authority. (Cal. Rules of Court,
rule 8.1008, subd.(b)(1).)

This petition is timely.

On January 22, 2009, Petitioner filed in the Appellate Department of the
San Mateo County Superior Court a Petition for Writ of Mandate from
the trial court’s order denying a motion to compel the production of
discovery.

On February 23, 2009 the Appellate Department of the Superior Court
for the County of San Mateo filed its unpublished Order Denying Petition
for Writ of Mandate and Vacating Stay of Jury Trial on February 23, 2009.
[Appendix ‘Y’].

On March 3, 2009, Petitioner petitioned the Appellate Department for
rehearing and for certification pursuant to Cal. Rules of Court, Rules
8.1002 and 8.1005(a).


On March 16, 2008, the Appellate Department filed its Order Denying
Petition for Rehearing and Application for Certification to Court of Appeal.
[Appendix ‘Z’].

The judgment of the Appellate Department became final on March 25,
2009, 30 days after the judgment was pronounced. (Cal. Rules of Court, rule
8.888, subd.(a)(1).)

This petition is timely as it is being brought within 15 days of the Appellate
Department’s judgment having become final. (Cal. Rules of Court, rule
8.1008, subd.(b)(2).)

The grounds for transfer are set forth below.


TABLE OF CONTENTS

TABLE OF AUTHORITIES

CERTIFICATION OF WORD COUNT

VERIFICATION


ISSUE PRESENTED FOR REVIEW

NECESSITY FOR REVIEW

STATEMENT OF THE CASE

GROUNDS FOR REVIEW

RELIEF REQUESTED


TABLE OF AUTHORITIES

I. CASE LAW

UNITED STATES SUPREME COURT
United States v. Nobles, 422 U.S. 225 (1975)

CALIFORNIA SUPREME COURT
Izazaga v. Superior Court, 54 Cal.3d 356 (1991)
Murgia v. Municipal Ct., 15 Cal.3d 286 (1975)

CALIFORNIA COURTS OF APPEAL
Hines v. Superior Court, 20 Cal.4th 1818 (1993)

II. STATUTORY AUTHORITY

Cal. Code Regs, Title 17
Cal. Pen. Code § 1054(f)
Cal. Veh. Code § 23152 (a) & (b)

III. CALIFORNIA RULES OF COURT

CAL. RULE OF COURT 8.204(C)(1)


CERTIFICATION OF WORD COUNT

I, Nafiz M. Ahmed, as the attorney for Petitioner herein, certify pursuant to
California Rule of Court 8.204(c)(1), that the word count of the following
brief is 3,642.

I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct.

Dated: January 20, 2009

Ahmed & Sukaram, Attorneys at Law

By: _________________________
Nafiz M. Ahmed, Esq.


VERIFICATION

I Nafiz M. Ahmed declare as follows:

I am an attorney licensed to practice in all courts of California.

In that capacity I was Petitioner’s attorney of record in the proceedings
underlying the foregoing petition and make this verification on Petitioner’s
behalf for the reason that the facts contained in the foregoing are within my
personal knowledge based on my representation of Petitioner.

I have read the foregoing petition and the exhibits attached thereto or
lodged with this Court, and know the contents thereof to be true based
upon my representation of the petitioner.

I declare under penalty of perjury that the foregoing is true and correct and
that this verification was executed on March 26, 2009, at Redwood City,
California.

________________________
Nafiz M. Ahmed



I. Issue Presented for Review

Under Penal Code § 1054.1(f) the District Attorney must produce the
original results of a scientific test that it intends to introduce into evidence
at trial. Does the District Attorney meet its obligation under 1054.1(f) by
producing automatic accuracy check results of a breath testing instrument
after these results have been formatted by a software program? Or, must
the District Attorney produce the original automatic accuracy check results
as they exist on the instrument itself?

II. Necessity for Review

There are no reported California decisions interpreting the scope of the
prosecutor’s duty of disclosure under Penal Code § 1054.1(f). Accordingly,
trial courts remain unguided in their application of this statute to discovery
disputes between District Attorneys and defense counsel. Precious judicial
resources are consumed in these disputes and differing unreported results
are likely being reached by judicial officers. Therefore, as forensic
toxicology becomes increasingly complex, especially through the use of
sophisticated breath testing technology, the courts and both the prosecution
and defense will benefit from case law delineating a District Attorney’s duty
of disclosure under § 1054.1(f).

III. Statement of Case for Review

Petitioner, CH is being prosecuted in the above-mentioned case for a
violation of Vehicle Code sections 23152 (a) & (b), arising out of an
incident occurring at or around, 1:50 a.m., on October 18, 2007. After his
arrest on this date, Mr. H submitted to a breath test as required by
California’s Implied Consent Law. Mr. H was administered a breath test on
a breath testing instrument known as the Draeger Alcotest 7110 MK III-C
(the “Draeger”). In particular, Mr. H submitted to a breath test on a
Draeger Alcotest serially numbered ARNK-0089 (“Draeger 0089”).


In this case, the District Attorney seeks to introduce into evidence the
blood alcohol concentration (“B.A.C.”) results of Mr. H’s breath test
obtained by the Draeger 0089 on October 18, 2007. In order to establish
the validity of the B.A.C. results obtained by this Draeger 0089, the District
Attorney must prove that the Draeger 0089 was in compliance with Title 17
of the California Code of Regulations on this date. Amongst the District
Attorney’s obligations to establish Title 17 compliance, the District
Attorney must prove that for a relevant time period the Draeger 0089
passed an accuracy check every 10 days or 150 subjects, whichever comes
first. [R.T.1, p.15: 8-12] .

The San Mateo County Sheriff’s Office Forensic Laboratory (the
“Laboratory”) programmed the Draeger 0089 to perform an automatic
accuracy check upon itself every Wednesday at 8:00 a.m. [R.T.1, p.15: 13-
15]. The results from the Draeger 0089’s automatic accuracy checks are
electronically stored within the instrument itself. [R.T.1, p.14: 12-20]. The
Laboratory can easily access these results using a software program called
the MA-7110 by merely isolating the date of the accuracy check. [R.T.1,
p.39-40]. The Laboratory can then print out the weekly automatic accuracy
check results of the Draeger 0089 onto a single sheet of paper. [R.T.1, p.64:
11-13].

But, the Laboratory did not print the automatic accuracy check results from
the Draeger 0089 in the manner described above. Instead, the Laboratory
used a computer, commonly known as the Draeger Computer to download
via modem the Draeger 0089’s automatic accuracy check results. [R.T.1,
p.14: 15-18; p.15: 15-16]. The Laboratory then used a software program to
convert the Draeger 0089’s automatic accuracy check results into a different
format. [R.T.1, p.36: 7-26; p.37: 1]. Thereafter, the Laboratory printed these
converted automatic accuracy check results and provided them to the
District Attorney to use in its case-in-chief to attempt to establish that at
the time of Mr. H’s breath test that the Draeger 0089 was Title 17
compliant. [R.T.1, p.14: 1-4; p.15: 2-4].

Significantly, however, the only time that the Laboratory ever attempted to
verify that the Draeger 0089’s converted and printed automatic accuracy
check results are the same as those that are stored on the Draeger 0089
itself was when the Laboratory first began using this Draeger in December


2004. [R.T.1, p.38: 3-21]. Here, Petitioner has simply requested that he be
provided the printed version of the automatic accuracy check results that
are stored on the Draeger 0089 itself as opposed to the converted accuracy
check results that are provided to the District Attorney. Petitioner’s request
is for the relevant time period for which the District Attorney would have
to establish Title 17 compliance. At most, this would require the Laboratory
to print 8 to 10 sheets of paper. [R.T.1, p.64: 11-13].

IV. Grounds for Review

It is axiomatic that for the majority of counties in the State of California
which use the Draeger Alcotest for evidential breath testing purposes that
the issue of what discovery a defendant in a prosecution for an alleged
violation of Vehicle Code § 23152(b) is entitled to is a significant.
Previously, the California Supreme Court has held that that “in a criminal
prosecution an accused is generally entitled to discover all relevant and
material information in the possession of the prosecution that will assist
him in the preparation and presentation of his defense.” [Murgia v.
Municipal Ct., 15 Cal.3d 286, 293 (1975)].

Here, the issue is whether Petitioner is entitled to discover the automatic
accuracy check results for the Draeger 0089 from the instrument itself for a
relevant time period, or must Petitioner be forced into accepting the
Laboratory’s representation that the converted automatic accuracy check
results that it forwarded to the District Attorney in this case are accurate?
By the Laboratory’s own admission the only time that it has ever attempted
to verify that the converted automatic accuracy check results that it
provides to the District Attorney for Draeger Alcotest instruments such as
the Draeger 0089 are accurate was over 4 years ago. Yet, the trial court and
this Appellate Department have ruled that Petitioner is not allowed to know
whether the automatic accuracy check results that the District Attorney will
use against him in a criminal prosecution are truly the numbers that are
stored on the Draeger 0089 itself.

Petitioner asserts that Hines v. Superior Court is the closest case to being
controlling here because no other reported decisions have interpreted the
scope of the prosecution’s duty of disclosure under Penal Code § 1054.1(f).
[Hines v. Superior Court, 20 Cal.4th 1818 (1993, 4th App.Dist.)]. Although


Hines specifically addressed Penal Code § 1054.3(a), due to the fact that
there is near mirror image symmetry in California’s discovery law, Hines
also governs the interpretation of § 1054.1(f). [Izazaga v. Superior Court, 54
Cal.3d 356, 377 (1991); See, Hines at 1822]. Accordingly, Hines interpreted
both the defendant’s and prosecution’s duty of disclosure under § 1054.3(a)
and § 1054.1(f) as follows:

“It is our conclusion that the statutory phraseology of ‘reports or
statements … including the results of … examination, scientific tests,
experiments or comparisons which the respective parties intend to offer in
evidence …’ reasonably should include the original documentation of the
examinations, tests, etc. Original documentation, including handwritten
notes if that be the case, would seem to be the best evidence of the test,
experiment or examination. An expert should not be permitted to insulate
such evidence from discovery by refining, retyping or otherwise reducing
the original documentation to some other form.” [Hines at 1822].

In the instant case, the trial court also agreed that Hines was the controlling
case in interpreting the prosecution’s duty of disclosure. Though, despite
finding Hines controlling, the trial court denied Petitioner access to the
discovery he requested because it held that the term “original
documentation” was limited to hand written notes. This Court denied
Petitioner access to the discovery at issue without a written opinion.

Petitioner respectfully requests that this Court reconsider its ruling and
order the District Attorney to produce the discovery requested because the
discovery requested is clearly encompassed within the definition of “original
documentation” as set forth in Hines. In the alternative, Petitioner
respectfully requests that this Court certify his case to the First District,
Court of Appeal to settle the issue of what is “original documentation”
within the meaning of Hines and whether the discovery at issue falls within
this definition. Given that there are no reported cases even interpreting §
1054.1(f), or its application to technology more sophisticated than a pen
and paper, this case should be certified to the First District, Court of
Appeal to settle an important question of law.


V. Relief Requested

For the above reason(s), Petitioner requests a transfer of this case to this
Court. In addition, Petitioner requests that this Court hold that the term
“original documentation” within the meaning of Hines is limited to
handwritten notes. Moreover, Petitoner requests that this Court hold that
the term “original documentation” encompasses the automatic accuracy
check records from the Draeger 0089 as they exist on the instrument itself.

Date: March 26, 2009

Respectfully submitted,

________________________
Nafiz M. Ahmed, Attorney for Petitioner, CH


PROOF OF SERVICE

I, Nafiz M. Ahmed, am a citizen of the United States and a resident of the
State of California. I declare that I am over 18 years of age, am not a party
to the within case; my business address is 600 Allerton Street, Suite 201,
Redwood City, CA 94063.

On March ______, 2009 I served the following documents:

PETITION FOR TRANSFER TO THE 1st DISTRICT COURT OF
APPEAL

James P. Fox
District Attorney
San Mateo County
400 County Center, 4th Floor

Office of the Attorney General
455 Golden Gate Av., Ste. 11,000
San Francisco, CA 94102

Appellate Department
San Mateo County Superior Court
c/o Clerk,
Hall of Justice
400 County Center

[X] On the parties in this action by personal delivery.

I declare under the penalty of perjury that the foregoing is true and correct.

Date: _________________ Signature: __________________


APPENDIX B

MOTION TO COMPEL DISCOVERY (1)

LAW OFFICES OF NAFIZ M. AHMED
Telephone: (650) 299-0500
Facsimile: (650) 299-0510

Attorney for Defendant
AG

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN
AND FOR THE COUNTY OF SAN MATEO

THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,

vs.

AG,
Defendant.

Case No.: NMXXXXXX

NOTICE OF MOTION AND MOTION TO COMPEL DISCOVERY;
DECLARATIONS OF KW, KM AND NAFIZ M. AHMED IN
SUPPORT OF MOTION TO COMPEL DISCOVERY; REQUEST FOR
JUDICIAL NOTICE

Hearing Date: November 16, 2007
Dept: PH
Time: 9:00 a.m.
Honorable: TBD


TO THE ABOVE-ENTITLED COURT AND TO THE DISTRICT
ATTORNEY OF SAN MATEO COUNTY, STATE OF CALIFORNIA:

PLEASE TAKE NOTICE that, on November 16, 2007, in Department
PH at 9:00 a.m., or as soon thereafter as the matter may be heard, the
defendant, AG will make a motion that this court compel the production of
discovery that the defense has requested from the Office of the District
Attorney for the County of San Mateo at least fifteen (15) days prior to the
present motion.

The defense is entitled to the requested discovery under Penal Code Section
1054.1 and the Due Process Clause of the United States Constitution. This
motion is based upon the attached: declarations of KW, KM and Nafiz M.
Ahmed; the attached exhibits; all papers filed and records in this action;
evidence taken at the hearing on this motion; and, argument at that hearing.

Dated: April 23, 2009


By: ________________________
Nafiz M. Ahmed, Attorney for ANA G


I. STATEMENT OF FACTS

FACTS OF THE CASE

Defendant, AG is being prosecuted in the above-mentioned case for a
violation of Vehicle Code Sections 23152(a) and (b), arising out of an
incident occurring at or around, 11:35 p.m., on December 31, 2006. After
her arrest on this date, Ms. G submitted to a breath test as required by
California’s Implied Consent Law. Ms. G was administered a breath test on
(the “Alcotest”). In particular, Ms. G submitted to a breath test on an
Alcotest numbered 0088 (“Alcotest 0088”).

THE DRAEGER ALCOTEST 7110 MK III-C

The Alcotest is a breath alcohol analyzer used for evidential breath alcohol
measurements. The Alcotest is the only evidential breath-testing instrument
which uses a dual system of Infrared (“IR”) absorption analysis and
Electrochemical (“EC”) sensor fuel cell technology to independently
measure alcohol concentration in the same breath sample.

The entire system includes the breath analyzer, a special organizer stand
with a drawer, a standard keyboard, an external laser printer, a wet bath
simulator, and a temperature probe. The Alcotest weighs approximately
16.5 pounds and resembles a tool kit. It fits in a metal case with a cover that
is removed when in use.

On its rear side, there are various interfaces including an exhaust port, an
outlet port to deliver air to the simulator, and an inlet port to the IR
absorption chamber (or cuvette). The top surface contains a flexible breath
hose which is forty-six (46) inches long and heated with two temperature
sensors to 43 plus or minus 0.3 degrees Celsius to prevent condensation
and overheating of the hose material. A disposable mouthpiece fits onto the
breath hose to ensure a better seal, make it easier to exhale, and aid hygiene.
The mouthpiece is changed after each breath sample.


The top of the instrument contains a forty-character light emitting diode
(LED) display screen which prompts the operator to take certain actions,
describes the operation being performed, conveys error messages, and
displays BAC results. It contains an internal printer which uses paper 2 ¼
inches in width and approximately 22 inches in length.

Like a computer, the Alcotest 7110 contains both hardware and software
components, however, it is best described as an embedded system with a
very specific, dedicated purpose. The hardware components include the IR
absorption chamber, EC sampling system, sensors (flow and pressure), a
signal processing system, and a microprocessor. Software components
include firmware for the microprocessor and software to handle data
communications, data retrieval, and operator input. The hardware
components (e.g., wet bath simulator vs. dry gas standard) and software
(firmware) components of the Alcotest are customized to the purchasing
state’s specifications.

The Alcotest is capable of storing the results of approximately One
Thousand (1000) tests. After the memory is full, the data can be removed
by an upload procedure to a computer. If the tests are not removed, they
will be erased on a first-in, first-out basis. Depending on the specifications
requested by the state, the Alcotest may be equipped with hardware capable
of communicating with a remote or central computer.

DATA RECORDS MAINTAINED AT THE SAN MATEO COUNTY
SHERIFF’S OFFICE FORENSIC LABORATORY

According to pages 31-33 and 54, of the January 31, 2005 version of the
San Mateo County Sheriff’s Office Forensic Laboratory (the “Forensic
Laboratory”) ‘Breath Alcohol Operating Procedures (the “BAOP”) ‘ for the
Alcotest, the Forensic Laboratory maintains the following records
demonstrating compliance with Title 17, Sections 1221.4(a)(6), 1222.1
[Forensic Alcohol Laboratory Records] and 1222.2 [Breath Alcohol
Analysis Records]: (1) Records of each instruments determinations of
accuracy; (2) Records of each Simulator Reference Solution; (3) Records of
all instrument maintenance; and, (4) Records of analyses performed, results
and identities of the persons performing the analyses. [Exhibit ‘B’].


The manner by which these records are expressed are found in Appendices
D, E, F, G, H, I, and K of the BOAP, pages 60-66, 68. [Exhibit ‘C’]. The
information on these above-mentioned Appendices are handwritten records
of the steps and results relating to the calibration, maintenance and
determinations of accuracy of the Alcotest.

Notably, however, the express policy of the Forensic Laboratory with
respect to the defense’s access to such records is stated on page 32 of the
BAOP as follows:

No breath alcohol analysis records, or copies thereof, shall be released to
any unauthorized agency or person without a properly executed court
order; or authorization of the prosecuting attorney; or on specific
authorization from the person responsible for forensic alcohol analysis on
the laboratory license.

Instead of producing the valuable hand-written information contained in
Appendices D–I, and K, to defense attorneys, which demonstrate
compliance with Title 17, the only records which defense attorneys receive
from the Forensic Laboratory is found in Appendix L [Exhibit ‘D’] - which
is a type-written transcription of certain limited information from the
above-mentioned Appendices, titled ‘Maintenance and Accuracy Check
Records.’ Conceptually speaking, if the Appendices were a mathematical
equation to demonstrate a properly working Alcotest, Appendices D–I, and
K would represent the steps proving the working order of the Alcotest;
whereas, Appendix L would represent the conclusion that Alcotest was
working. [See Decl. of KW, page _, lines __].

THE INFORMAL DISCOVERY REQUESTS

Ms. G has informally requested several items of discovery from the Office
of the District Attorney for the County of San Mateo (“District Attorney”)
dating back to May 22, 2007, pertaining to the Alcotest 0088 [Exhibit ‘F’].
Essentially, in her May 22, 2007 informal discovery request, Ms. G
requested all writings (and specifically requested hand written records)
intending the definition of a ‘writing’ as defined by Evidence Code Section
250, relating to: (1) the administration of the Alcotest 0088 on DUI
suspects from 10-31-06 through 1-31-07; (2) maintenance records of the


Alcotest 0088 from 10-31-06 through 1-31-07; (3) error messages for the
Alcotest 0088 from 10-31-06 through 1-31-07; and (4)
“comments/resolution” records for Alcotest 0088 from 10-31-06 through
1-31-07. [Exhibit F]. In addition, Ms. G included as a catch-all provision, a
request for “[a]ll other discoverable information relating to the [Alcotest]
0088 … pursuant to Penal Code § 1054 et seq. and Brady v. Maryland.”

Ms. G was not provided any of the above-mentioned discovery, which
would have necessarily included the information contained in Appendices
D–I, K. Though Ms. G did not receive a written denial from the Office of
the District Attorney to produce such records, her attorney did receive a
written denial from the District Attorney to produce such records in
another DUI case with an identical discovery request. [Exhibit ‘G’].
Essentially, the written denial from the District Attorney stated that the
only information concerning the Alcotest that would be provided to Ms. G
was the information already provided in Appendix L.

Thereafter, on August 23, 2007, Ms. G made another informal discovery
request for a copy of all manuals possessed by the San Mateo County Crime
Lab regarding the Alcotest, including but not limited to: (1) User Manual;
(2) Instructor Manual; (3) Technical Manual; (4) Functions Manual; (5)
Black Key Manual; and (6) Breath Simulator Manual [the “Manuals”]. In
addition, Ms. G requested a copy of any and all agreements, including but
not limited to, licensing agreements, between the County of San Mateo and
Draeger Safety Diagnostics, Inc. (“Draeger”), 185 Suttle Street, Suite 105,
Durango, Colorado 81303-7911. [Exhibit ‘H’]. On August 29, 2007, Ms. G
received a response from the District Attorney that no such discovery
would be forthcoming absent a “specific and legal articulation of how [the
Manuals] are relevant to [Ms. G’s] case.” [Exhibit ‘I’].

On September 11, 2007, Ms. G responded that Penal Code Section 1054.1
and the Due Process Clause of the United States Constitution mandate the
production of the Manuals. [Exhibit ‘J’]. Specifically, she stated that the
Manuals are substantial material evidence favorable to the accused because
access to them will allow the defendant “his or her right to scientifically
challenge the validity or trust-worthiness of the Alcotest blood alcohol
content result offered against him. Otherwise, without access to these
Manuals, and as it presently stands, every defendant in this county is forced


to accept the validity and accuracy of the aforementioned blood alcohol
content test results without cross-examination concerning the Alcotest or
its operator.”

On September 27, 2007, Ms. G received written notice from the District
Attorney that it would not provide the requested manuals to her because
she failed to specifically assert how the Manuals were substantial material
evidence favorable to the accused. [Exhibit ‘K’]. In addition, the District
Attorney continued that it has fulfilled its discovery obligations to Ms. G
because: (1) it has produced records which demonstrate the “Alcotest’s
compliance with Title 17;” (2) Ms. G has not cited binding California law
mandating that the District Attorney provide the Manuals; and, (3) since
Ms. G has failed to demonstrate what reason there is to question the
reliability of the Alcotest … It is the People’s position that without this
evidence, there is no exculpatory material to disclose.” [Exhibit ‘K’].

Lastly, in its September 27, 2007 letter, the District Attorney refused to
provide the licensing agreement between Draeger and San Mateo County
because: (1) “the agreement is irrelevant to [Ms. G’s] case,” (2) Ms. G has
not articulated her need for the licensing agreement; and, (3) the agreement
is protected as work product under California Code of Civil Procedure
section 2018.030.” [Exhibit ‘K’].

Thus, at this moment, it appears as if the discovery process is at a standstill.
Ms. G has not received any of the requested records from the District
Attorney. Ms. G now respectfully asks the court to issue an order directing
the District Attorney to produce the above-requested discovery, and any
other discovery compelled under Penal Code § 1054 et. seq. and the Due
Process Clause of the United States Constitution, in order to allow Ms G to
prepare a constitutionally adequate defense.

II. POINTS AND AUTHORITIES

Ana G is hereby requesting that this Court order the District Attorney to
produce the following discovery: (1) any and all contractual agreements
between Draeger and the County of San Mateo and/or Forensic
Laboratory; (2) all Manuals possessed by the Forensic Laboratory relating to
the Alcotest; and, (3) all writings requested in Ms. G’s May 22, 2007


informal discovery request. The defense is entitled to the above-requested
discovery because it is “exculpatory” and “in the possession of the
investigating agencies/prosecution team” within the definitions of Penal
Code Section 1054.1 and the Due Process Clause of the United States
Constitution. By ordering the District Attorney to produce the above-
requested discovery, this Court would be upholding the well-established
principle that, “in a criminal prosecution an accused is generally entitled to
discover all relevant and material information in the possession of the
prosecution that will assist him in the preparation and presentation of his
defense.” [Murgia v. Municipal Ct., (1975) 15 Cal.3d 286, 293].

A. THE ABOVE-REQUESTED DISCOVERY IS
EXCULPATORY WITHIN THE MEANING OF THE DUE PROCESS
CLAUSE OF THE UNITED STATES CONSTITUTION.

Prosecutors have a constitutional mandate to disclose exculpatory material
evidence to defendants in criminal cases. The suppression by the
prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution. [People v.
Barrett, (2000) 80 Cal.App.4th 1305, 1314, citing to, Brady v. Maryland,
(1963) 373 U.S. 83, 87]. The duty of the prosecution to disclose such
evidence to the defense exists even without a request for such material.
[Id.].

For Brady purposes, evidence is favorable if it helps the defense or hurts
the prosecution, as by impeaching a prosecution witness. [People v.
Zambrano, (2007) 41 Cal.4th 1082, 1132, citing to, United States v. Bagley,
(1985) 473 U.S. 667, 676]. Evidence is material if there is a reasonable
probability its disclosure would have altered the trial result. [Id.]. Materiality
includes consideration of the effect of the nondisclosure on defense
investigations and trial strategies. [Id.].

For present purposes, the exculpatory nature of the above-requested
discovery must be viewed in light of Vehicle Code § 23152(b), which
provides that: “It is unlawful for any person who has a 0.08 percent or
more, by weight, of alcohol in his or her blood to drive a vehicle…” [Cal.
Veh. Code § 23152(b), (West 2007)]. Among the primary methods in this


county by which the determination of whether an individual is driving with
a 0.08 percent or more, by weight, of alcohol in his or her blood, is by
having that person submit to a breath test using the Alcotest.

The admission of the Alcotest breath test results against an accused in a
criminal proceeding is only conditioned upon the prosecution showing
compliance with Title 17 or an Adams Foundation, i.e., the foundational
elements of: (1) the reliability of the instrument, (2) the proper
administration of the test, and (3) the competence of the operator. [People
v. Williams, (2002) 28 Cal.4th 408, 416, citing to People v. Adams, (1976)
59 Cal.App.3d 559, 567]. In explaining the basis for admission of the breath
test results, the Williams court held:

“Adams expressly held that Title 17 compliance and the tripartite
foundational requirements were distinct and independent means to support
the admission of test results. Compliance with the regulations was sufficient
… On the other hand, although the regulations are the standard of
competency, they are not the only standard. Even absent compliance with
the regulations, the People could obtain admission of the evidence through
the general [Adams Foundation] …”

However, the Williams court explicitly cautioned, “[w]hile Adams may
authorize the admission of test results where substantial compliance with
Title 17 is shown, it does not authorize the negation of a mandatory duty,
where as here, substantial compliance is not shown. To hold otherwise
would render Title 17 a nullity.” In conclusion, the Williams court said of
admitting breath test results with Title 17, “[c]ompliance with the
regulations, by contrast, guarantees the People quick and certain admission
of evidence, eliminating laborious qualification, critical cross-examination,
and the risk of exclusion. “

i. The Records Requested in the May 22, 2007 Informal Discovery Request
are Exculpatory.

Presently, the only records which the defense receives from the Forensic
Laboratory is Appendix L, which as was discussed above, is only a mere
conclusion that Title 17 has been complied with. The District Attorney
argues that it fulfills its discovery burdens to the defense by disclosing this


unitary record. However, the District Attorney’s proffered justification for
failing to provide Appendices D–I, K, are not in comport with the law.

The defense is entitled to access to all possible records which can
demonstrate that there is not substantial compliance with Title 17. Under
Williams, if the defense can present evidence that Title 17 has not been
substantially complied with, the results of the breath alcohol tests cannot be
admitted as evidence against the accused. The defense is seeking the
information in Appendices D–I, K, which can demonstrate that there has
not been substantial compliance with Title 17. Even more specifically, the
defense is requesting the unadulterated hand written records from these
Appendices. [See Hines v. Superior Court, (1993) 20 Cal.App.4th 1818,
citing to People v. Estrada, (1960) 54 Cal.2d 713, 716 (handwritten notes of
witness statements are discoverable even when not exculpatory within the
meaning of Brady (Supra).)].

Obviously, this information which can potentially lead to the exclusion of a
breath test result is substantial material evidence favorable to the accused -
it can hurt the prosecution’s case, as well as, help the defense case.
Presumably, the California Legislature agrees that information regarding an
individual’s breath test is substantial material evidence. Vehicle Code §
23158(c) specifically provides that, “[u]pon the request of the person tested,
full information concerning the test taken at the direction of the peace
officer shall be made available to that person or that person’s attorney. [Cal.
Veh. Code § 23158(c), (West 2007); See McKinney v. Dept’ of Motor
Vehicles (1992) 5 Cal.App.4th 519, 525 (applying this discovery provision
to the Intoxilyzer breath test result); Petricka v. Dept’ of Motor Vehicles
(2001) 89 Cal.App.4th 1341]. Therefore, the defense requests that this
Court order the District Attorney to produce the hand written records
contained in Appendices D–I, K, as well as, any other records pertaining to
the Alcotest’ compliance with Title 17 which is not being provided to the
defense since this material is exculpatory within the definition of Brady
(Supra).

ii. The Manuals are Exculpatory.

The Manuals are exculpatory evidence because without access to the
Manuals there is no way for the defense to make an informed determination


of whether the Alcotest has been maintained in compliance with Title 17.
Even if the District Attorney argues that the Forensic Laboratory’s
following of the procedures in the BAOP demonstrates that the Alcotest is
being maintained in compliance with Title 17, without access to the
Manuals, there is no way for the defense to determine whether the
information in the BAOP is accurate. The defense should not be held to
the mercy of the District Attorney’s take-our-word-for-it approach to
fulfilling its discovery obligations.

Moreover, without access to the Manuals there is no way for the defense to
make an informed determination of whether the District Attorney can
establish a proper Adams Foundation, i.e.,: (1) the reliability of the
instrument, (2) the proper administration of the test, and (3) the
competence of the operator. As is suggested by the names of the Manuals
that the defense seeks, e.g., User Manual, Instructor Manual, and Technical
Manual, etc., defense access to the Manuals will allow the defense the ability
to determine whether the test was properly administered by an individual
qualified to perform the test on correctly functioning equipment. The
defense must be able to effectively cross-examine any person who
maintains the Alcotest, as well as, any person who administers the test
regarding whether all appropriate procedures were meticulously followed.
Again, the defense is deprived of Due Process where it is forced to accept
the District Attorney’s ‘trust us’ approach to discovery.

iii. The Contractual Agreements between Draeger and the County of
San Mateo and/or Forensic Laboratory are Exculpatory.

The defense is entitled to know exactly what instrument the County of San
Mateo and/or Forensic Laboratory purchased from Draeger. The defense
wants to know what firmware version is being used here , as well as,
information concerning the hardware of the purchased instruments, the
maintenance agreements with Draeger, the procedures by which the County
and Draeger agreed that records would be stored, and a host of other
information that the defense cannot know is exculpatory without actually
examining the agreements themselves. The significance of defense access to
the agreements rises with each passing moment, as the instruments are used
more frequently, and are acquiring more data, and are more likely to break
down.


B. THE DISTRICT ATTORNEY IS REQUIRED TO DISCLOSE
THE ABOVE-REQUESTED EXCULPATORY EVIDENCE
BECAUSE IT IS IN THE POSSESSION OF THE FORENSIC
LABORATORY WHICH IS PART OF THE “PROSECUTION
TEAM.”

A prosecutor’s duty under Brady to disclose material exculpatory evidence
extends to evidence the prosecutor—or the prosecution team—knowingly
possesses or has the right to possess. [Barrett, 80 Cal.App.4th at 1314-
1315]. The prosecution team includes both investigative and prosecutorial
agencies and personnel. [Barrett at 1315]. In addition, a prosecutor has a
duty to learn of favorable evidence known to other prosecutorial and
investigative agencies acting on the prosecution’s behalf, including police
agencies. [Id. at 1315]. The scope of the prosecutorial duty to disclose
encompasses exculpatory evidence possessed by investigative agencies to
which the prosecutor has reasonable access. [Id.].

The Forensic Laboratory is unambiguously on the prosecution team with
respect to all phases of a criminal prosecution for a violation of Vehicle
Code § 23152(b). The BAOP clearly states on page 40:

“The Laboratory’s responsibilities in the breath alcohol program include
maintenance, periodic determination of accuracy, and repair of
instruments; maintenance of records which are specified in our method;
training and certification of operators; and adherence to Title 17
requirements. The Laboratory is also responsible for providing expert
testimony in court regarding theory and operation of the Draeger Alcotest
7110 MK III-C and interpretation of blood alcohol levels.”

A deeper analysis of case law and whether the Forensic Laboratory is on
the prosecution team is simply unwarranted by these facts. The District
Attorney therefore has a duty to provide the requested Brady Material
from Forensic Laboratory to the defense.


III. CONCLUSION

For the above reasons, Ms. G hereby requests that this Court order the
above-requested discovery to be produced to her by the District Attorney.



By: ________________________
Nafiz M. Ahmed, Attorney for AG


DECLARATION OF NAFIZ M. AHMED IN SUPPORT OF
MOTION TO CONTINUE TRIAL

I, Nafiz M. Ahmed, do hereby declare:

1. That I am the attorney for AG.

2. That I have complied with the statutory requirements of Penal Code
Section 1054.5.

3. That the declarations of KM and KW are not presently filed with this
motion, but that I will file these declarations as soon as they are completed.

I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct.



By: ________________________
Nafiz M. Ahmed, Attorney for AG


PROOF OF SERVICE

I, Nafiz M. Ahmed, am a citizen of the United States and a resident of the
State of California. I declare that I am over 18 years of age, am not a party
to the within case; my business address is 600 Allerton Street, Suite 201,
Redwood City, CA 94063.

On October 23, 2007 I served the following documents:

NOTICE OF MOTION AND MOTION TO COMPEL DISCOVERY;
DECLARATIONS OF KW, KM AND NAFIZ M. AHMED IN
SUPPORT OF MOTION TO COMPEL DISCOVERY; REQUEST FOR
JUDICIAL NOTICE

Office of the District Attorney
County of San Mateo
400 County Center, 4th Floor

[X] On the parties in this action by personal delivery.

I declare under the penalty of perjury that the foregoing is true and correct.

_______________________ __________________________
Date Signature


APPENDIX C

MOTION TO COMPEL DISCOVERY (2)

AHMED AND SUKARAM, ATTORNEYS AT LAW
Telephone: (650) 299-0500
Facsimile: (650) 299-0510

Attorneys for Defendant
CH

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN
AND FOR THE COUNTY OF SAN MATEO

THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,

vs.

CH,
Defendant.

Case No.: SMXXXXXX

NOTICE OF MOTION AND MOTION TO COMPEL DISCOVERY
OF ORIGINAL AND UNTRANSCRIBED BREATH TEST RECORDS
UNDER PENAL CODE § 1054 ET SEQ.

Hearing Date: September 24, 2008
Dept: PH
Time: 9:00 a.m.
Honorable: TBD


TO THE ABOVE-ENTITLED COURT AND TO THE DISTRICT
ATTORNEY OF SAN MATEO COUNTY, STATE OF CALIFORNIA:

PLEASE TAKE NOTICE that on September 24, 2008, in Department PH
at 9:00 a.m., or as soon thereafter as the matter may be heard, that
defendant, CH will make a motion that this court compel the San Mateo
County District Attorney’s Office to produce the untranscribed and original
printed version of the electronic automatic accuracy check records for the
Draeger Alcotest 7110 MK III-C serially numbered ARNK 0089 for the
months of September 2007 through November 2007 pursuant to Penal
Code Section 1054 et seq.

The defense is entitled to the requested discovery under, but not limited to,
the Due Process Clauses of the United States and California Constitutions;
the Sixth Amendment of the United States Constitution; Penal Code
Section 1054.1; and, Evidence Code § 721. This motion is based upon the
attached: declaration of Nafiz M. Ahmed; the attached exhibits; all papers
filed and records in this action; evidence taken at the hearing on this
motion; and, argument at that hearing.



By: ________________________
Nafiz M. Ahmed, Attorney for CH


I. STATEMENT OF FACTS

FACTS OF THE CASE

Defendant, CH is being prosecuted in the above-mentioned case for an
alleged violation of Vehicle Code Sections 23152(a) and (b), arising out of
an incident occurring at or around, 1:50 a.m., on October 18, 2007. After
his arrest on this date, Mr. H submitted to a breath test as required by
California’s Implied Consent Law. Mr. H was administered a breath test on
(the “Draeger Alcotest”). In particular, Mr. H submitted to a breath test on
a Draeger Alcotest serially numbered ARNK-0089 (“Draeger Alcotest
0089”).

THE BREATH TEST RECORDS

Forensic Alcohol Laboratories that perform “Breath Alcohol Analysis” are
regulated under Title 17 of the California Code of Regulations. [Cal. Code
Regs., Title 17 §§ 1215.1; 1216; 1222 (West 2007)]. Such Laboratories are
only permitted to use breath testing devices for breath alcohol analysis
which are approved in the “Conforming Products List” published in the
Federal Register by the National Highway Traffic and Safety Administration
of the U.S. Department of Transportation. [See, Cal. Code Regs., Title 17 §
1221.3 (West 2007)]. The Draeger Alcotest is a breath testing device that is
approved for breath alcohol analysis within the “Conforming Products
List.”

Pursuant to Title 17 of the California Code of Regulations, in order for a
breath testing instrument, such as the Draeger Alcotest to meet minimum
standards of accuracy, it must correctly detect the alcohol concentration of
a “reference sample of known alcohol concentration within precision limits
of plus or minus 0.01 grams % of the true value…” [Cal. Code Regs., Title
17 § 1221.4(a)(2)(A) (West 2007)]. Forensic Alcohol Laboratories are
directed under Title 17 to determine the accuracy of such breath testing
devices every 10 days or following the testing of every 150 subjects,
whichever comes sooner. [Cal. Code Regs., Title 17 § 1221.4(a)(2)(B) (West
2007)]. Forensic Alcohol Laboratories are mandated to keep these records
for a period of at least three years at a licensed forensic alcohol laboratory.


[Cal. Code Regs., Title 17 §§’s 1222.1(a); 1221.4(a)(6); 1221.4(a)(6)(A) (West
2007)]. Moreover, these records must be available for the California
Department of Health Services upon request. [Cal. Code Regs., Title 17 §
1222 (West 2007)].

The San Mateo County Sheriff’s Office Forensic Laboratory (the
“Laboratory”) is a Forensic Alcohol Laboratory governed by Title 17. The
Laboratory uses the Draeger Alcotest as its breath testing device to
determine the concentration of alcohol within an individual’s breath
sample. It schedules automatic accuracy checks of the Draeger Alcotest to
determine whether it is working within the defined limits of accuracy as set
forth by Title 17. The Laboratory retains the untranscribed and original
printed version of the electronic automatic accuracy check records for the
Draeger Alcotest pursuant to Title 17 mandates.

However, the Laboratory only produces to defense attorneys an edited,
truncated and transcribed document, which purports to represent the
records of the automatic accuracy checks. This document is commonly
known as Appendix ‘L’ [Maintenance and Accuracy Check Records] of the
San Mateo County Sheriff’s Office Forensic Laboratory Draeger Alcotest
7110 MK III-C Breath Alcohol Operating Procedures Manual (the
“BAOP”). The only method by which defense attorneys would have access
to the untranscribed and original printed version of the electronic automatic
accuracy check records for any Draeger Alcotest is by receiving such
records from the Laboratory.

THE INFORMAL DISCOVERY REQUESTS

On July 25, 2008, Mr. H, by and through his attorney of record, requested
pursuant to Penal Code § 1054 et seq. the “printed version of the automatic
accuracy check records for the [Draeger Alcotest 0089] for the months of
September–November 2007.” [Exhibit ‘A’]. Mr. H received no response
from the San Mateo County District Attorney’s Office to his informal
discovery request until August 22, 2008. On August 22, 2008, Mr. H
received a forwarded letter from the Laboratory that no such records would
be forthcoming because it “would require excessive work by the
[L]aboratory.” [Exhibit ‘B’].


II. POINTS AND AUTHORITIES

Mr. H is hereby requesting that this Court order the District Attorney to
produce the untranscribed and original printed version of the electronic
automatic accuracy check records for the Draeger Alcotest 0089 for the
months of September 2007 through November 2007 pursuant to the Due
Process Clauses of the United States and California Constitutions, the Sixth
Amendment of the United States Constitution, Penal Code § 1054.1(f) and
California Evidence Code § 721. By ordering the District Attorney to
produce the above-requested discovery, this Court would be upholding the
well-established principle that “in a criminal prosecution an accused is
generally entitled to discover all relevant and material information in the
possession of the prosecution that will assist him in the preparation and
presentation of his defense.” [Murgia v. Municipal Ct., 15 Cal.3d 286, 293
(1975)].

A. THE ORIGINAL PRINTED VERSION OF THE
ELECTRONIC AUTOMATIC ACCURACY CHECK RECORDS FOR
DRAEGER ALCOTEST 0089 FOR SEPETEMBER 2007–
NOVEMBER 2007 MUST BE DISCLOSED PURSUANT TO PENAL
CODE § 1054.1(F).

Penal Code § 1054.1(f) requires the prosecuting attorney to disclose to the
defendant or his or her attorney all of the following materials and
information, if it is in the possession of the prosecuting attorney or if the
prosecuting attorney knows it to be in the possession of the investigating
agencies:

… “(f) Relevant written or recorded statements of witnesses or reports of
the statements of witnesses whom the prosecutor intends to call at the trial,
including any reports or statements of experts made in conjunction with the
case, including the results of physical or mental examinations, scientific
tests, experiments, or comparisons which the prosecutor intends to offer in
evidence at the trial.”

Appendix L is a discoverable scientific test within the meaning of Penal
Code § 1054.1(f). This is true because in a criminal prosecution of an
alleged violation of Vehicle Code § 23152(b) the District Attorney routinely


offers Appendix L into evidence in its case-in-chief as the results of a
scientific test. Based upon Appendix L, the District Attorney’s expert
witness from the Laboratory generally testifies that the Draeger Alcotest
was working correctly at the time of the defendant’s breath test.

Under well settled case law, Mr. H is entitled to the original documentation
underlying the presently edited, truncated and transcribed data found in
Appendix L. [See, Hines v. Superior Court, 20 Cal.4th 1818 (1993, 4th
App.Dist.)]. Under Hines, the court interpreted the defendant’s duty of
disclosure under Penal Code § 1054.3(a) as follows:

“It is our conclusion that the statutory phraseology of ‘reports or
statements … including the results of … examination, scientific tests,
experiments or comparisons which the respective parties intend to offer in
evidence …’ reasonably should include the original documentation of the
examinations, tests, etc. Original documentation, including handwritten
notes if that be the case, would seem to be the best evidence of the test,
experiment or examination. An expert should not be permitted to insulate
such evidence from discovery by refining, retyping or otherwise reducing
the original documentation to some other form.” [Hines at 1822].

Penal Code §§’s 1054.3(a) and 1054.1(f) are “virtually the same.” [Hines at
1824; Izazaga v. Superior Court, 54 Cal.3d 356, 377 (1991) (“near mirror-
image symmetry under California’s new discovery chapeter)]. Thus, if
the defense was required to produce such discovery under Section
1054.3(a), the prosecution would likewise have a similar burden under the
Reciprocal Discovery Statutes - here Section 1054.1(f). Accordingly, the
District Attorney’s is obligated to produce the untranscribed and printed
original documentation of the automatic accuracy check records for the
Draeger Alcotest 0089 for the months of September 2007 through
November 2007 .

B. THE LABORATORY IS AN “INVESTIGATIVE AGENCY”
WITHIN THE MEANING OF PENAL CODE § 1054.1(F).

The role of the Laboratory with respect to criminal prosecutions of alleged
violations of Vehicle Code § 23152(b) is clearly set out in the BAOP. Page
40 of the BAOP succinctly states:


“The Laboratory’s responsibilities in the breath alcohol program include
maintenance, periodic determination of accuracy, and repair of instruments;
maintenance of records which are specified in our method; training and
certification of operators; and adherence to Title 17 requirements. The
Laboratory is also responsible for providing expert testimony in court
regarding theory and operation of the Draeger Alcotest 7110 MK III-C and
interpretation of blood alcohol levels.”

Clearly, the Laboratory is an investigative agency within the meaning of
Penal Code § 1054.1(f). [See, People v. Barrett, 80 Cal.App.4th 1305, 1317
(2000, 4th App.Dist.)].

III. CONCLUSION

For the above reasons, Mr. H hereby requests that this Court order the San
Mateo County District Attorney’s Office to produce the untranscribed and
original printed version of the electronic automatic accuracy check records
for the Draeger Alcotest 0089 for the months of September 2007 through
November 2007 pursuant to Penal Code Section 1054.1(f).



By: ________________________
Nafiz M. Ahmed, Attorney for CH

The Examination of Prosecution and Defense Witnesses - By San Francisco DUI Lawyer Nafiz Ahmed

The Examination of Prosecution and Defense Witnesses - By San Francisco DUI Lawyer Nafiz Ahmed

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